In a resounding decision, the 4th Circuit Court of Appeals explains why a rail worker’s pursuit of a racial or sexual discrimination claim does not constitute an “election of remedies” barring that worker from pressing a Federal Rail Safety Act Section 20109 whistleblower retaliation claim.
In Lee v. Norfolk Southern Railway Company, carman Charles Lee was suspended after he insisted on complying with FRA safety regulations requiring him to “bad order” defective rail cars for repair. He first filed a discrimination complaint claiming the suspension was motivated by his race, and later filed a separate FRSA action claiming it was in retaliation for his safety whistleblowing.
The district court granted summary judgment on the FRSA claim, holding the racial discrimination lawsuit constituted an “election of remedies” that barred his subsequent FRSA action because both involved the “same allegedly unlawful act” of suspension. Lee appealed, and the U.S. Solicitor of Labor and the Association of American Railroads weighed in with amicus briefs. In a comprehensive opinion, the 4th Circuit agreed with Lee and the Solicitor of Labor and reversed, holding that “a suspension on the basis of race in not ‘the same allegedly unlawful act’ as a suspension in retaliation for FRSA whistleblowing”:
we conclude that the FRSA’s Election of Remedies provision is unambiguous because it is susceptible to only one reasonable interpretation–that a suspension on the basis of race is not “the same allegedly unlawful act” as a suspension in retaliation for FRSA whistleblowing. And even if we did find the provision ambiguous, we would still reverse because the legislative history and context of the statute demonstrates that the provision does not sweep as broadly as Norfolk Southern suggests.
According to the Secretary of Labor (appearing as an amicus on Lee’s behalf), both the statutory context and legislative history make clear that the Election of Remedies provision only requires an employee to choose between proceeding under the FRSA or another law prohibiting retaliation for the same types of rail safety or security-related whistleblowing addressed in the FRSA. . . . Congress only intended to bar railroad employees from seeking duplicative relief under overlapping anti-retaliation or whistleblower statutes that provide protections similar to the protections in FRSA, such as Section 11(c) of the OSH Act and various state versions of the OSH Act, many of which track Section 11 (c) nearly verbatim.
The Circuit Court stressed that both FRSA Section 20109 and OSHA’s 11(c) are statutes “aimed at preventing retaliation for engaging in protected whistleblowing activities regarding safety and health in the workplace,” whereas Section 1981 seeks to curb racial and sexual discrimination. As such, the “unlawful acts” they address are not the same, and raise “distinct causes of action with different elements and burdens of proof.”
So hats off to Attorney Bill Tucker and the Secretary of Labor for insisting the federal courts get it right. Here is the full text of Lee v. Norfolk Southern Railway Company. For more on Section 20109 of the FRSA, go to the Rail Whistleblower Library.